How one woman changed the law

The work of Professor Jenni Millbank has led to groundbreaking law reforms around de-facto and same-sex relationships in Australia, taking us “streets ahead” of the US.

“One of the beautiful things about being an academic is that you can sit back and look at the big picture,” says Professor Jenni Millbank.

In the past year, the UTS: Law professor’s research and determination has led to two significant reforms in family and relationship law in Australia.

The first change awarded de-facto relationships, including same-sex couples, equal legal rights to their married counterparts. The second reform legally acknowledged both parents in lesbian relationships.

As a result of the changes, all couples can now access the Family Court for property disputes, and same-sex couples and their children are now treated equally in relation to superannuation, Medicare, immigration and social security. The reforms are nothing short of revolutionary.

“It’s a really major transformation,” says Millbank. “Australia now treats married couples and unmarried couples almost the same across every area of law. The reforms brought de-facto couples into the Family Court and the family law regime.”

Millbank was lured to academia 14 years ago, leaving the daily grind of legal practice behind. Intelligent, perceptive and possessed with a measured confidence, Millbank gives the impression of an iconoclast – driven, inspired, visionary.

“In academia, you can think thematically, theoretically, even comparatively,” says Millbank. “You can consider not just what the law is, but what it should be and where it is going – the big long-term questions.”

The door to her office features a newspaper clipping of Barack Obama on the campaign trail, smiling and striking a quintessential hero pose as he waves to a crowd of thousands. Like Obama, Millbank is aware of the power of persuasion and persistence, and selects her words with precision. They are both experienced as law professors and have chosen to use the law as a means of achieving sweeping social change.

Unlike Australia, debate over same-sex marriage is still raging in the US. There was strong public outcry after Proposition 8 was passed in November 2008, banning gay marriage in California, and while gay marriage is not recognised at a federal level in the US, a handful of states have legalised same-sex marriage.

“Unmarried couples of any kind have very few rights in America,” explains Millbank. This situation is quite unlike Australia – making the battle to legalise same-sex marriage, especially given the political power of America’s conservatives, even more heated.

“I think it does show something about the Australian psyche,” she says. “We tend to think: ‘Oh well, marriage certificate... you can have one or not. It doesn’t really matter.’ We’re much more concerned with how people live their lives. “I’m quite proud of our system in the area of family and relationship law. I think we are so much more sophisticated, interesting and fairer [than the US].”

This pragmatic approach underpinned the second set of family law reforms, which saw the legal recognition of both parents in lesbian families. Prior to this change, a child born to lesbian mothers would only have one legal parent: the birth mother. Second parent adoption was not possible and only a very limited form of recognition was available through the Family Court.

“While about 20 per cent of lesbian couples had children living with them, only a small minority of families sought court orders to formalise the parental relationship.

“On a day-to-day level, these reforms mean both mothers can make medical decisions from the moment the baby is born, are legally entitled to sign school permission slips, be listed on the birth certificate, take the child overseas and get a passport for the child,” says Millbank.

“The major difference in this approach is that it applies automatically from birth. The beauty of the Australian model compared to something like second parent adoption, which is the common approach in the US, is that it is very simple and has broad coverage.”

The wider social implications of such reforms are not lost on Millbank. “In the longer term, there is likely to be greater social acceptance and understanding of these family forms as just one among the many diverse family forms that Australian law recognises.”

It is this inherent flexibility, its willingness to adapt, that Millbank admires about Australia’s legal tradition. “One of the good things about our system is that it promotes a process of enquiry through, for example, law reform commissions. We don’t just say, ‘This is the law. We passed it 50 years ago. If it’s not working, tough.’ We’re constantly thinking about ways that law should be changing and adapting to different human needs.”

So what’s next? What would Millbank’s ideal world look like? “You would probably need a couple of days to go through my wish-list of law reforms!” she says. “I’ve always had a joke with my colleagues: ‘Once we’ve fixed everything to do with social justice and people, I’ll move on to animal rights.’ There’s always something to be done.”